Ghose and Pargiter, JJ.
1. The question raised in this appeal is, whether certain documents produced by the defendant in answer to the plaintiffs' claim, which is one for ejectment, are inadmissible in evidence by reason of want of registration. This question, however, was not raised either in the Court of first instance or in the Court of appeal below; and, looking at the judgments of both the lower Courts, it would clearly appear that the real point upon which the parties went to trial was whether those documents were genuine or not. The Court of first instance held that they are not genuine; but the Subordinate Judge in the Court of appeal below came to a different conclusion, namely, that the documents in question are genuine, and that the defendant had such an interest in the property as disentitled the plaintiff to eject him. The documents are described as amalnaman, and were granted by the plaintiffs' lessor in June 1882. They recite that the defendant verbally applied for a grant of certain lands and that he is permitted to hold and clear the jungle (the lands being then covered with jungle), that he should be allowed to hold without payment of any rent for nine years, that on the expiration of that period of time, the lands would be measured and assessed at the rate of Rs. 3 and odd annas per bigha, and that, upon the execution of a Imhuliat by the tenant, a pottah would be granted to him. The nine years, for which the amalnama was granted, expired eleven years ago;. and it appears, upon the evidence on behalf of the defendant, that he had been holding the lands in question upon payment of rent to the plaintiffs' lessor. It does not appear that any lease in the terms of the amalnamas was granted to the defendant; yet the latter was allowed to hold on upon payment of rent. The question now is whether the amahamas propounded by the defendants are documents which, having regard to Section 17 of the Registration Act, coupled with the definition of the word 'lease' as given in Section 3 of the same Act, require registration. The contention of the learned vakil for the appellant is that these documents are either leases or agreement to lease within the meaning of Section 3 of the Registration Acts and, as such, require registration. 'We are, however, unable to accept this contention as correct; for, what the landlord really agreed to was that, upon the defendant fulfilling certain conditions referred to in the amalnamas, he would grant a lease The documents could not certainly be regarded as leases. It has however, been argued that they are, at any rate, agreements to lease As we have already indicated, there was no absolute agreement so as the Plaintiff was concerned; for the document, in one portion thereof, states that, if the grantee fails to reclaim the lands within the period of nine years, for which he is allowed occupation thereof, it will be in the power of the landlord to settle the lands with anybody else he pleases. So there was no absolute agreement on the part of the landlord to lease the lands to the defendants. The agreement to lease would depend, as it were, upon the grantee fulfilling the conditions imposed upon him by the' documents themselves. Our attention has been called to various cases decided by this Court, but it is not necessary to refer to any of them, because we must decide the question now raised before us upon the terms of the particular documents before us. We might, however, state that the learned vakil for the appellant relied very strongly upon the decision of a Full Bench of this Court in the case of syen Sufdar Reza v. Amzad Ali (1881) I.L.R. 7 Calc. 703; but that case is quite distinguishable from the case before us. In the present case as already mentioned the term of nine years, for which the amlnamas were granted, expired long ago. It maybe that, if the documents had been produced in evidence in any Court during the nine years in question, they would not have been admissible in evidence upon the ground of non-registration. It may also be that the rights of the parties have now to be adjusted in a very different way from that indicated in the amalnamas in question But these are matters which we need not consider in the present case. The plaintiff sued the defendant as trespasser upon the ground that he had no right whatsoever in the lands in question and he impugned the genuineness of the amalnanms propounded by him. These analnamas were found to be true; and the evidence indicates that, ever since the expiration of nine years for which the amalnamas were granted, the defendant has been in possession of the lands upon payment of rent to the landlord That being so, we think that the decree of the Court below is correct, and that the plaintiffs' claim for khas possession must be dismissed, he being declared entitled to rent from the defendant.
2. We may add that the learned vakil for the appellant further argued that the amahiamas propounded by the defendant covered only the interests of the 10-anna maliks, and not of the whole body of the maliks, and that, therefore, the plaintiff would, at any rate, be entitled to recover a 6-anna share of the lands in question. This point, however, does not seem to have been raised in the Courts below, and we are informed by the learned vakil for the respondent that the evidence adduced on his behalf shows that he had from the other 6-anna shareholders' grants similar to those received from the 10-anna maliks, and that those documents were destroyed by fire.
3. The appeal is accordingly dismissed with costs.